Judge finds proper balance between due process and national security in Al-Haramain wiretapping case

Victor Comras [Special Counsel, Eren Law Firm]: "Classified information and court rooms usually just don't mesh. And, this factor is at the very heart of the continuing dilemma we face in using our judicial system to deal with terrorism and terrorists. Terrorism cases pose very special investigative and court room challenges. The objective in many of these cases is to identify and to stop the terrorists, and to prosecute them, even before they act. And, when it comes to most financing-of-terrorism cases, the challenge is to be able to demonstrate a specific intent or mens rea even when the culprits employ well established charities and charitable works to mask their real intentions. This often necessitates the use of sensitive intelligence gathering methods in addition to normal investigative procedures. But, the real difficulty arises when it comes to turning this classified information into evidence that can be used for the purposes of prosecution in open court. And, when this is impossible, we have to seek to balance the protection of our sensitive intelligence sources and methods so essential to our national security with our deep felt commitment to due process, judicial fairness and justice, as well as to maintain accountability and to assure against abuse.

It appears to me that U.S. District Court Chief Judge Vaughn Walker has done a truly remarkable job weighing and balancing these factors. His ruling in the Al-Haramain Oregon NSA wiretapping case, which was just upheld by a Ninth Circuit three-judge panel, sets forth a set of procedures that may well become the template for the future handling of classified information in such cases. I leave to others to comment on the many legal intricacies involved in the ruling. For my part, I am content that the court found a way to allow limited, but essential access to classified information critically relevant to the merits of that case.

The procedures set forth will allow the court, and, conditionally, one or a few of Al-Haramain's attorneys to review classified information that is determined by the judge to be critical to due process and fairness in the case. The classified information will be maintained in a secure facility, reviewed first by the judge who will also have the opportunity to consider ex parte the Justice Department's security concerns regarding the information to be viewed by specially designated opposing counsel(s). Before obtaining such access, the designated opposing counsel(s) will first be required to obtain the requisite security clearances. For its part, the Justice Department has been ordered to facilitate the granting of such clearances in a timely fashion without lowering security clearance standards or rules against any further classified information dissemination.

While the Judge's order makes it all sound quite straight forward, and we should certainly hope that turns out to be the case, there is still a real possibility that the process will be hung-up by the usual delays that are regularly encountered in obtaining sensitive intelligence security clearances. Perhaps some thought should be given to the establishment of special new procedures to establish a special Federal Bar of Attorneys pre-cleared and enabled to be available as co-counsel in cases involving (requiring) some access to classified information. That would put such special defense counsel on equal footing with their prosecuting attorney brethren. After all, both are already equally considered to be duly appointed officers of the court. The burden would be on attorneys applying to membership to such a special Federal Bar not only to demonstrate their suitability for such clearances, but to front some of the costs that the clearance process regularly entails. These costs could then be passed on in the course of the usual fees charged to clients."

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